Missouri responds in abortion case

The state of Missouri today urged the Supreme Court to stay out of the dispute over two of the state’s abortion requirements. Last week, Planned Parenthood asked the justices to reinstate a lower court’s order blocking the state from enforcing those requirements, arguing that the requirements are identical to two Texas regulations that the Supreme Court struck down last year. But, in a filing today, the state countered that the court’s intervention is not necessary – particularly because the order by the U.S. Court of Appeals for the 8th Circuit putting the lower court’s decision on hold (and thereby allowing the state to enforce the requirements) is more temporary than the justices had previously been told.

Planned Parenthood had challenged two requirements imposed on abortion clinics in Missouri – the requirement that physicians providing abortions have the right to admit patients at nearby hospitals and the requirement that the facilities be licensed as surgical centers. The group contended that the requirements bore a close resemblance to the Texas rules that the Supreme Court deemed unconstitutional in Whole Woman’s Health v. Hellerstedt. And much like the Texas rules, Planned Parenthood argued, the Missouri requirements would impose “enormous burdens” on women seeking an abortion in Missouri, by leaving only two clinics able to provide abortions in the entire state.

The district court agreed and blocked the state from enforcing the requirements. The state went to the 8th Circuit, asking it to stay the lower court’s order pending appeal. After the court of appeals granted that request, Planned Parenthood asked the Supreme Court to step in, telling the justices that, if they do not, three other clinics “will remain unable to provide abortion services pending resolution of the appeal before the Eighth Circuit—even though the laws preventing them from doing so are surely unconstitutional.”

The issues before the justices became more complicated this morning, when Planned Parenthood filed a letter with the Supreme Court. The group explained that it had asked the 8th Circuit to clarify whether its order blocking the district court’s ruling is in fact an order by the full court granting the stay pending appeal, or whether it is instead more limited – a temporary freeze of the district court’s ruling, intended to give the full 8th Circuit time to consider the state’s motion for a stay pending appeal. The court of appeals responded that it is the latter. Although Planned Parenthood encouraged the justices to step in anyway, they may be significantly less likely to do until the 8th Circuit acts more definitively.

In its filing this afternoon, the state pointed to Planned Parenthood’s letter as one reason for the justices to sit out this round of the dispute. But even if Planned Parenthood’s request to reinstate the district court’s order is not premature, the state continued, it still “lack[s] merit.” First, the state suggested, the Missouri requirements that Planned Parenthood has challenged “differ critically” from the Texas regulations invalidated in Whole Woman’s Health. Among other things, it explained, the Missouri government (unlike in Texas) can “grant waivers or ‘deviations’ from the” surgical-center requirements. But Planned Parenthood has not identified “any instance in which an abortion facility was denied a requested deviation,” the state emphasized, and it never applied for one before filing this lawsuit. Moreover, it continued, Planned Parenthood settled an earlier lawsuit against the state, and that settlement agreement prohibits it from bringing this suit now.

There is no timetable for the justices to act on Planned Parenthood’s request, but they are likely to do so relatively quickly.

This post was also republished at SCOTUSblog.com.

Amy L HoweUntil September 2016, Amy served as the editor and reporter for SCOTUSblog, a blog devoted to coverage of the Supreme Court of the United States; she continues to serve as an independent contractor and reporter for SCOTUSblog. Before turning to full-time blogging, she served as counsel in over two dozen merits cases at the Supreme Court and argued two cases there. From 2004 until 2011, she co-taught Supreme Court litigation at Stanford Law School; from 2005 until 2013, she co-taught a similar class at Harvard Law School. She has also served as an adjunct professor at American University’s Washington College of Law and Vanderbilt Law School. Amy is a graduate of the University of North Carolina at Chapel Hill and holds a master’s degree in Arab Studies and a law degree from Georgetown University.